Following on “When losing is winning. Part 1,” I’m writing now about another phenomenon that has been covered a bit in other posts. That is, defining winning. On the defense side of civil and criminal cases, some of them are, technically speaking, losers. That is, an outright defense verdict is unlikely no matter what – the liability/guilt is there. It is, however, possible for a plaintiff’s or prosecutor’s verdict to still be a win for the defendant. That is, though the criminal defendant gets found guilty, if it is of a lesser charge than the worst possible, this is a win. In a civil case, losing $8,000,000 is far better than losing $25,000,000 (as happened in one our memorable cases years ago). Losing the case is relative. The size of the loss actually gets counted in the “win” column in some cases. Undoubtably, many of our clients have used mock jury research to figure out how to reduce their risks and soften the blow of a “loss.”
As David says, losing one’s lawsuit is relative. Sometimes, a loss is obvious, such as the time we worked for a client who lost a billion dollar case, had it overturned on appeal due to a legal technicality, then retained Magnus prior to the second trial. This client followed all of my recommendations (although, often, under protest) and ultimately won $1.2 billion for his clients. That is an obvious example of winning! Other times, however, winning one’s case might be: (1) having one’s client sentenced to life in prison without parole instead of the death penalty in a capital murder case; (2) having one’s client sentenced to manslaughter instead of murder; (3) having one’s large corporate client paying for its negligence at a fraction of what the plaintiff demanded; (4) obtaining a multimillion dollar verdict after being awarded next to nothing in mock trials; and (5) favorably settling a case the attorney thought was a winner after it was revealed to be a loser in mock jury research. These examples have happened to Magnus’ clients many times. They are strong justification for our unwillingness to calculate win/loss rates that some of our competitors love to tout in their marketing materials. It is scientifically impossible for trial consultants to calculate wins and losses because there is no control group with which to compare the results of not having conducted research with the results of the trial, after the case is modified based on research findings. Attorneys who try to take the easy way out by relying on unsophisticated, simplistic analyses of wins and losses and the consultants who promote this erroneous way of viewing research have no place in my world, needless to say.